According to Smith, over 10,000 orders are filed for electronic surveillance every year at the federal level. Most of those are issued “under seal,” meaning they’re not available for public review. And Smith complains that almost none of those secret tracking orders are ever made public, even long after the investigation ends.

“[The secrecy of electronic surveillance orders] is of course understandable,” Smith writes. “Immediate disclosure of the target’s name and number might defeat the purpose of the surveillance. The problem is the duration and extent of that secrecy.”

Between 1995 and 2007, Houston judges issued 3,886 sealed orders for electronic surveillance. Of those, only 9 have ever been unsealed as of April 2008. That leaves 99.8% of the cases completely shielded from public scrutiny.

That lack of transparency is compounded by the fact that just who can be surveilled in a case is far from clear, thanks to ambiguities in the Electronic Communications Privacy Act (ECPA). As we wrote yesterday, that’s one of the main subjects of today’s hearing. But as lawyer Marc Zwillinger told us, the ambiguity around just what evidence is needed to issue a tracking order means that prosecutors often track large numbers of people only tangentially related to a case. In one 2008 bank robbery case with five suspects, 180 of those suspects’ family members and acquaintances were tracked.

Whether that should be a scandal isn’t clear. But as Judge Smith writes, the public has a right to know. “It may well be that a fully-informed public would not object to this tradeoff in personal privacy for the sake of more efficient law enforcement,” he writes in his testimony. “The problem is, due to the ECPA’s regime of secrecy, the public is not fully informed, and can only be dimly aware of the depth and breadth of surveillance carried out under current law.”

Check out his full testimony below, and the other witnesses’ testimony here.

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